Citation NR: 9710143
Decision Date: 03/25/97 Archive Date: 04/02/97
DOCKET NO. 93-03 629 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to an increased (compensable) rating for
residuals of shell fragment wound to left side of head.
2. Entitlement to an increased (compensable) rating for
residuals of laceration to left hand.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Daniel R. McGarry, Associate Counsel
INTRODUCTION
The veteran had active service from June 1968 to June 1970.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision in which the
regional office (RO) confirmed and continued noncompensable
ratings for residuals of shell fragment wound to left side of
head and residuals of laceration to left hand. The Board
remanded this case in November 1994 and February 1996. The
RO has returned it to the Board.
In Floyd v. Brown, 9 Vet.App. 88 (1996), the Court of
Veterans Appeals (Court) held that the Board does not have
jurisdiction to assign an extraschedular rating under 38
C.F.R. § 3.321(b)(1) in the first instance. The Board is
still obligated to seek out all issues that are reasonably
raised from a liberal reading of documents or testimony of
record and to identify all potential theories of entitlement
to a benefit under the laws and regulations. In Bagwell v.
Brown, 9 Vet.App. 337 (1996), the Court clarified that it did
not read the regulation as precluding the Board from
affirming an RO conclusion that a claim does not meet the
criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1)
or from reaching such a conclusion on its own. Moreover, the
Court did not find the Board’s denial of an extraschedular
rating in the first instance prejudicial to the veteran, as
the question of an extraschedular rating is a component of
the appellant’s claim and the appellant had full opportunity
to present the increased-rating claim before the RO.
Bagwell, slip op. at 4. Consequently, the Board will
consider whether this case warrants the assignment of an
extraschedular rating.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran has requested higher evaluations for the service-
connected residuals of shell fragment wound to the left side
of the head and of laceration to the left hand. He has not
made specific contentions concerning these disabilities, but
has implied the contention that the disabilities have
worsened and should be assigned compensable ratings.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the grant of increased ratings for
residuals of shell fragment wound to the left side of the
head and residual of laceration to the left hand.
FINDINGS OF FACT
1. The veteran does not have functional impairment or
disfigurement from residuals of shell fragment wound to the
left side of the head, or a scar that is painful, tender,
poorly nourished, or repeatedly ulcerative.
2. Residuals of laceration to the veteran’s left hand
include a well-healed, nondisfiguring, one inch scar on the
thenar prominence of the left hand, without neurological
deficit or functional impairment.
CONCLUSIONS OF LAW
1. The criteria for a compensable schedular rating for
residuals of shell fragment wound to the left side of the
head have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.118,
Diagnostic Code 7805 (1996).
2. The criteria for a compensable schedular rating for
residuals of laceration to the left hand have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321,
4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7805 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran has presented a well-grounded claim for increased
disability evaluation for his service-connected disabilities
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf.
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where
veteran asserted that his condition had worsened since the
last time his claim for an increased disability evaluation
for a service-connected disorder had been considered by VA,
he established a well-grounded claim for an increased
rating). The Board is satisfied that all appropriate
development has been accomplished and the Department of
Veterans Affairs (VA) has no further duty to assist the
veteran in developing facts pertinent to his claim. The
veteran has not advised VA of the existence of addition
evidence which may be obtained.
Disability evaluations are based upon the average impairment
of earning capacity as contemplated by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (1996). Although VA must consider the entire record, the
most pertinent evidence, because of effective date law and
regulations, is created in proximity to the recent claim.
38 U.S.C.A. § 5110 (West 1991).
VA utilizes a rating schedule which is used primarily as a
guide in the evaluation of disabilities resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The percentage ratings
represent, as far as can practicably be determined, the
average impairment in earning capacity resulting from such
diseases and injuries and their residual conditions in civil
occupations. Generally, the degrees of disability specified
are considered adequate to compensate for considerable loss
of working time from exacerbations or illnesses proportionate
to the severity of the several grades of disability. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1996). It is
essential, both in the examination and in the evaluation of
disability, that each disability be viewed in relation to its
history. 38 C.F.R. § 4.1 (1996).
Service medical records show that in early February 1969, the
veteran was treated for a very small shell fragment wound on
the left side of his head. The wound was cleaned; the
veteran was hospitalized overnight and discharged the
following morning. In late February 1969, he was treated for
a laceration to the left hand. The laceration was sutured
and the veteran was told to keep his hand clean and dry and
to return in five days for removal of the sutures. He did
not have subsequent in-service treatment associated with
these wounds.
In a July 1970 rating decision, the RO granted service
connection for residuals of shell fragment wound to the left
side of the head and residuals of laceration to the left
hand. Zero percent ratings were assigned. The
noncompensable evaluations have remained in effect to the
present. In evaluating the veteran’s disability from the
wounds, the RO has utilized Diagnostic Code 7805. Under that
diagnostic code, nondisfiguring scars that are not the result
of burns, and which are not poorly nourished, with repeated
ulceration, tender or painful, are rated based on limitation
of function of the part affected.
The record does not show, nor does the veteran assert, that
he has received treatment for the disabilities being
considered herein.
During the June 1996 VA examination, the veteran reported
that in February 1969, a piece of shrapnel from a rocket
struck him in the left temple area. The shrapnel was removed
at a field hospital and the wound was cleaned. He was
admitted to the hospital and was discharged after one or two
days. He told the examiner that, at first, he had a problem
with opening his jaw. He reported that occasionally he still
experiences some “cracking” in the left temporomandibular
joint. On examination of the area, the VA examiner was not
able to see any scar. He reported that there was no
abnormality and expressed his doubt that there was any
residual disorder.
In the absence of objective evidence of functional impairment
or other compensable residual disability, the Board concludes
that the criteria for a compensable rating for residuals of
shell fragment wound to the left side of the head have not
been met.
The veteran reported that the second wound he sustained in
February 1969 was a laceration to the left hand caused by
shrapnel from a grenade. His only reported complaint was
feeling a little tingling when the scar was touched. The
examiner described a one inch scar on the thenar prominence
of the left hand. The scar was well-healed and caused no
functional disability. There was no neurological deficit.
The Board finds that the veteran has a nondisfiguring, well-
healed, one inch scar on the palmar aspect of his left hand
which is not painful or tender, and which causes no
functional impairment of the hand. In the absence of
objective evidence of functional impairment, the Board
concludes that criteria for a compensable rating for
residuals of laceration to the left hand have not been met.
In reaching its decision, the Board has considered the
history of the disabilities in question as well as the
current clinical manifestations and the effect the
disabilities may have on the earning capacity of the veteran.
38 C. F. R. §§ 4.1, 4.2 (1996). The original injuries have
been reviewed and the functional impairment that can be
attributed to pain or weakness has been taken into account.
See DeLuca v. Brown, 8 Vet App 202 (1995). The Board has
also considered the provisions of 38 C.F.R. § 4.7, which
provide for assignment of the next higher evaluation where
the disability picture more closely approximates the criteria
for the next higher evaluations. Where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. However,
without evidence that the veteran has disfiguring scars, or
scars that are tender, painful, poorly nourished, ulcerative,
or result in functional impairment, his disabilities from
residuals of wounds to the left side of the head and left
hand, as discussed above, do not approximate the criteria for
a 10 percent schedular evaluation.
In exceptional cases where schedular evaluations are found to
be inadequate, consideration of “an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities” is made. 38 C.F.R. § 3.321(b)(1)
(1996). The governing norm in these exceptional cases is a
finding that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. Id.
The Board first notes that the schedular evaluations in this
case are not inadequate. Compensable schedular ratings are
available for residual scars, but the medical evidence
reflects that the manifestations needed for such ratings are
not present. Second, the Board finds no evidence of an
exceptional disability picture in this case. The veteran has
not required hospitalization for the disorders under
consideration, nor is it shown that he requires frequent
treatment, or that such disorders markedly interfere with
employment. There is no evidence that the impairments
resulting solely from residuals of the service-connected
wounds, by themselves, warrant extra-schedular consideration.
Therefore, extraschedular consideration under 38 C.F.R.
§ 3.321(b) is not warranted in this case.
ORDER
Increased (compensable) ratings for residuals of shell
fragment wound to the left side of the head and for residuals
of laceration to the left hand are denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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